ABSTRACT: In recent class action case law, the United States Courts of Appeals
for the First, Second, and Third Circuits have modified governing legal
standards that had been established law for decades, explicitly
overruling some precedents and arguably adopting a new paradigm for
class action certification. Unfortunately, however, recent opinions
have engendered widespread confusion and disagreement concerning how
the new approach properly functions in the context of the most commonly
disputed element of class certification analysis, which is the
predominance of “common questions of law or fact” over “questions
affecting only individual members” of the class, under Rule 23(b)(3) of
the Federal Rules of Civil Procedure.